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Transcivilizational International Law Against the System of International Relations: Onuma Yasuaki’s Normative Choice

  • Gustavo GOZZI (a1)
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Professor, University of Bologna, Italy.

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1. ONUMA, Yasuaki, International Law in a Transcivilizational World (Cambridge: Cambridge University Press, 2017) at 19. See also ONUMA, Yasuaki, A Transcivilizational Perspective on International Law (The Hague: Hague Academy of International Law, 2010) at 80.

2. See ONUMA, Yasuaki, “When Was the Law of International Society Born? An Inquiry of the History of International Law from an Intercivilizational Perspective” (2000) 2 Journal of the History of International Law 1 at 8.

3. Ibid., at 12.

4. See KHADDURI, Majid, The Islamic Law of Nations: Shaybānī’s Siyar (Baltimore, MD: Johns Hopkins Press, 1966) at 28.

5. Ibid., at 40.

6. The claim to universality advanced by West-centric international law bears comment, for it co-existed with colonial law, which consisted of three elements: metropolitan law, the local law of the colony, and the specific law expressing an extreme form of discrimination against non-Western people. See GRANDMAISON, Oliver Le Cour, Coloniser exterminer: Sur la guerre et l’état colonial (Paris: Fayard, 2005) at 252. In this double standard of Western law lay its “heart of darkness”. As Onuma rightly observes in International Law in a Transcivilizational World, this was “a system of power disguised in the form of law” (Onuma, supra note 1 at 83).

7. See LORCA, Arnulf Becker, “Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation” (2010) 51 Harvard International Law Journal 475 , arguing that nineteenth-century Western international law has not been imposed on non-Western peoples but has been appropriated by non-European jurists, who applied it to non-Western peoples by changing its rules in ways that are functional to their countries’ interests.

8. It is worth noting, however, that international human rights law can be used to legitimate a state’s hegemonic interventions and violate the right to sovereignty of other states. We can appreciate, then, that some frontally conflicting trends are afoot in the process that, from a transcivilizational perspective, is transforming international law into a law of the global community. See Onuma, supra note 1 at 87.

9. See Onuma, supra note 2 at 66. See also R.P. ANAND, “Review Article” (2004) 6 JHIL 1 at 13. The question first came into focus in the late 1950s in the work of scholars pointing out the need for a multicultural international law. A prominent example is JENKS, C.W., The Common Law of Mankind (New York: Frederick A. Praeger, 1958) at 87.

10. See Nahed SAMOUR, “Modernized Islamic International Law Concepts as a Third World Approach to International Law” (2012) 72 ZaöRV 543, rereading the concepts in the Siyar so as to bring them to bear on a Third World critique of contemporary public international law, which gives legal form to the subordination of the Muslim World.

11. SCHABAS, William A., ed., The Universal Declaration of Human Rights: The Travaux Préparatoires (New York: Cambridge University Press, 2013) at 2466.

12. In the Preamble of the Arab Charter we can read that the Arab Nation is entrusted with realizing “the everlasting principles established by the Islamic Shari’a and the other divine religions enshrined in brotherhood and equality amongst human beings”.

13. In March 2003, the LAS Council issued a resolution asking the Arab Standing Committee on Human Rights to modernize the Arab Charter by bringing it into line with current international human rights standards. See Mervat RISHMAWI, “The Revised Arab Charter on Human Rights: A Step Forward?” (2005) 5 Human Rights Law Review 361 at 363.

14. See Onuma, supra note 1 at 370.

15. Ibid., at 376.

16. See Boaventura de Sousa SANTOS, “Toward a Multicultural Conception of Human Rights” (1997) 18 Zeitschrift für Rechtssoziologie 1, and Raimundo PANIKKAR, “Is the Notion of Human Rights a Western Concept?” (1984) 81 Cahier 28. This hermeneutical approach rejects the dichotomy between universalism and relativism and offers multiculturalism as a third way between these alternatives. See also AN Na’IM, Abdullahi A., Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (New York: Syracuse University Press, 1996) .

17. See Onuma, supra note 1 at 417.

18. KELSEN, Hans, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer reinen Rechtslehre (Tübingen: Mohr Siebeck Verlag, 1920) at 353.

19. As Onuma had previously argued: “For international law to be truly global in the sense that its legitimacy is voluntarily accepted by peoples all over the world, it must be accepted not only by existing states … but also by peoples with diverse civilizational backgrounds.” Onuma, supra note 2 at 66. On this approach, see also Christian TOMUSCHAT, “World Order Models: A Disputation with B.S. Chimni and Yasuaki Onuma” (2006) 8 International Community Law Review 71 at 79.

20. See Onuma, supra note 1 at 478 (italics in original).

21. In a previous essay he had written: “Law as a normative idea … has a power to induce people to realize the values and interest that law prescribes. The power of the ideas of human rights and democracy in domestic and international political arenas are typical examples.” ONUMA, Yasuaki, “International Law and Power in the Multipolar and Multicivilizational World of the Twenty-first Century” in Richard FALK, Mark JUERGENSMEYER, and Vesselin POPOVSKI, eds., Legality and Legitimacy in Global Affairs (Oxford: Oxford University Press, 2012) at 170.

22. See Onuma, supra note 1 at 479.

23. “The concept of war … has become the touchstone of all international law.” Carl SCHMITT, Writings on War, Timothy Nunan, trans., ed. (Cambridge: Polity Press, 2011) at 62.

24. See Plenary Meetings 86, 87, 89, 90 of the 59th session of the UN General Assembly (2005): UN Docs. A/59/PV.86, 87, 89, 90.

25. See Onuma, supra note 1 at 660.

26. Ibid., at 160.

* Professor, University of Bologna, Italy.

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Asian Journal of International Law
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